## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 8 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BARRY COMBS, Plaintiff - Appellant,

v. PRICEWATERHOUSECOOPERS LLP, Defendant, and ANN BENNETT,

Defendant - Appellee. Nos. 03-1080, 03-1222

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO (D. Ct. No. 01-MK-987 (OES))
Thomas J. Kimmell, Zarlengo & Kimmell, LLC, Denver, Colorado, appearing for Plaintiff-Appellant. Cindy C. Oliver (Jennifer Clark, with her on the br iefs), Rothgerber, Johnson & Lyons, LLP, Denver, Colorado, appearing for Defendant-Appellee.* The Honorable Robert H. McWilliams, originally ass igned to this panel,

recused himself after oral argument. -2- Before TACHA , Chief Circuit Judge, PORFILIO * , and LUCERO, Circuit Judges.

TACHA , Chief Circuit Judge.

Plaintiff-Appellant Barry Combs, a minority shareho lder and former employee of Allied Information Solutions, Inc. (“AI S”), alleged six grounds for breach of fiduciary duty against Defendant-Appellee Ann Bennett, the majority shareholder and only other employee of AIS. After removal to federal court, Ms. Bennett moved for summary judgment arguing, in part , that Mr. Combs must bring his allegations as a derivative action. The District Court granted Ms. Bennett’s motion. Mr. Combs then filed a motion to amend his complaint to state a derivative action, which the District Court denie d as moot. On appeal, Mr. Combs challenges both rulings. We take jurisdictio n under 28 U.S.C. § 1291 and
AFFIRM.
I. BACKGROUND AIS is a close corporation organized under Colorado law. It has never had more than six shareholders. In 1987, Mr. Combs bec ame a minority shareholder of AIS and began working there. At all times relev ant to this appeal, Ms. Bennett, the majority shareholder of AIS, has been the president, chairman of the-3-

board, and sole other employee of AIS. In the late summer of 1999, PriceWaterhouse Coopers acquired all the assets of AIS, although AIS remains an extant corpo rate entity. As part of this transaction, both Ms. Bennett and Mr. Combs became employees of PriceWaterhouse Coopers. Approximately four months after this transaction, PriceWaterhouse Coopers terminated Mr. Combs’ emplo yment. After his discharge, Mr. Combs brought numerous cau ses of action against both PriceWaterhouse Coopers and Ms. Bennett in Col orado state court, including an age discrimination suit against PriceWaterhouse Coopers under 29 U.S.C. §
621 et seq . (“ADEA”). The ADEA claim enabled PriceWaterhouse Coopers and Ms. Bennett to remove the case to federal court, see 28 U.S.C. § 1441(c), where the District Court took supplemental jurisdiction o ver Mr. Combs’ numerous state law claims , see 28 U.S.C. § 1367(a). Having subsequently reached asettlement agreement with Mr. Combs, PriceWaterhouse Coopers i s not before us on appeal. We therefore turn our focus to the claims against M s. Bennett. Mr. Combs rested his sole action against Ms. Bennett, breach of fiduciary duty, on six alleged instances of her misconduct. Much of the factual basis for these claims arise out of an August 1999 audit of A IS. Although Mr. Combs invited the other minority shareholders to particip ate in the audit, they declined, thus leaving him with the entire financial burden o f the audit.-4-

In the District Court, Ms. Bennett filed a motion f or summary judgment, offering three supporting arguments. First, she co ntended that Mr. Combs lacked standing to bring these claims in his individual capacity, asserting that he must bring this suit as a derivative action on behalf of the corporation. Second, Ms. Bennett presented a statute of limitations argument . Third, she argued that Mr. Combs could not carry his burden of proof as a matt er of law. On January 31, 2003, the District Court, relying solely on Ms. Ben nett’s first ground, granted summary judgment and discharged all claims against Ms. Bennett. On February 28, 2003, Mr. Combs appealed the summary judgment ruling. On February 10, 2003, Mr. Combs filed a motion to amend his complaint to state a derivative action. See Fed. R. Civ. P. 15(a). On April 14, 2003, based o n its previous summary judgment ruling, the District Court denied the motion as moot. Mr. Combs challenges this ruling in a separately filed appeal (“motion to amend appeal”). In September 2003, Ms. Bennett mov ed to consolidate the two appeals, which was granted. She also moved this Co urt, pursuant to 10th Cir. R. 27.2(A)(1), to dismiss the motion to amend appeal, arguing that mootness and lack of appellate jurisdiction preclude review of t he District Court’s decision. We consider this argument, along with the merits of Mr . Combs’ appeal, below.
II. SUMMARY JUDGMENT Mr. Combs presents two arguments against the necess ity of a derivative-5-

action in this case. First, he asserts that he maysue in his individual capacity because Ms. Bennett “cause[d] him injury as a stockholder, unique to himself and not suffered by the other stockholders.” Nicholson v. Ash , 800 P.2d 1352, 1357 (Colo. Ct. App. 1990). Second, he urges that, beca use AIS is a close corporation, filing this suit in a derivative capacity would notfurther the policies served by the derivative action procedure. Applying Colorado law , we disagree. A. Standard of Review We review the District Court’s “grant of summary ju dgment de novo, applying the same standards used by the district co urt.” Byers v. City of Albuquerque , 150 F.3d 1271, 1274 (10th Cir. 1998). Summary ju dgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, i f any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c ). We view the evidence, and draw reasonable inferences therefrom, in the light most favorable to the nonmoving party. Byers , 150 F.3d at 1274. B. Standing as a Unique Shareholder To escape summary judgment on his breach of fiduciary duty claim, Mr. Combs must put forth evidence of the elements of a breach of fiduciary duty, see Graphic Directions, Inc. v. Bush , 862 P.2d 1020, 1022 (Colo. Ct. App. 1993)1 “While not binding on this court, decisions by a s tate’s intermediate

appellate courts provide evidence of how the state’ s highest court would rule on the issue, and we can consider them as such.” Craven v. Univ. of Colo. Hosp. Auth. , 260 F.3d 1218, 1231 (10th Cir. 2001) (internal qu otation omitted). We will not disregard such intermediate rulings “unless [we are] convinced by other persuasive data that the highest court of the state would decide otherwise.” West v. Am. Tel. & Tel. Co. , 311 U.S. 223, 237 (1940). -6- (providing elements), and also establish that he has standing, s ee River Mgmt. Corp. v. Lodge Props. Inc ., 829 P.2d 398, 403 (Colo. Ct. App. 1991). 1 Accordingly, the District Court based the summary j udgment order on its finding that Mr. Combs lacked standing as a matter of law. Mr. Combs contends that he suffered a breach of fid uciary duty from the fact that Ms. Bennett: (1) paid herself a salary in excess of what had been approved by AIS’s board of directors; (2) paid for personal expenses out of AIS funds; (3) failed to disclose the pending sale of A IS to the shareholders in a timely manner; (4) pursued business opportunities f or herself instead of for AIS; (5) falsely promised him continued employment with PriceWaterhouse Cooper; and (6) negotiated a lucrative salary from PriceWat erhouse for herself without similarly providing for Mr. Combs. Absent an exception to the general rule, Mr. Combs lacks standing to bring these claims in an individual capacity. Under Colorado law, “a stockholder cannot maintain a personal action against a directo r or other third party whose action causes harm to the corporation. Generally, it is the corporation, or a2 If Mr. Combs were to pursue these harms, he would h ave to do so strictly

in his capacity as an employee, as we explain below . But such a claim would necessarily fail on the merits. “Before there can be a breach of a fiduciary duty, a fiduciary relationship or a confidential relationsh ip must exist.” Turkey Creek, (continued...) -7- stockholder in a derivative action . . . , who mustpursue such a claim.” Nicholson , 800 P.2d at 1356. Moreover, Colorado law states expressly that Mr. Combs’ first and second contentions – claiming wast e and mismanagement of corporate assets – must be brought as a derivative action, even in close corporations having but one minority shareholder. River Mgmt. Corp. , 829 P.2d at 404; see also O’Malley v. Casey , 589 P.2d 1388 (Colo. Ct. App. 1979) (filing of derivative action is proper for claims regarding excessive salaries); Ireland v. Wynkoop , 539 P.2d 1349, 1354, 1357 (Colo. Ct. App. 1975) ( same for suits alleging wrongful use). As to his third contention , although close corporation “shareholders reasonably can expect to be informed of all listings [in a timely manner] and have a right to expect that offers to p urchase will be pursued and negotiated in good faith[,]” Colt v. Mt. Princeton Trout Club, Inc ., 78 P.3d 1115, 1120 (Colo. Ct. App. 2003), such a claim is properl y pursued as a derivative action, id . at 1116. Such is also the case with Mr. Combs’ f ourth contention regarding self-dealing. Ireland , 539 P.2d at 1357. As the District Court noted, the fifth and sixth grounds, as they allege injurie s to Mr. Combs as an employee, simply fail on the merits as a matter of law. 22 (...continued)

LLC v. Rosania , 953 P.2d 1306, 1312 (Colo. Ct. App. 1998). As su ch, Mr. Combs cannot bring this suit solely in his capacity as an employee because, while an employee normally owes fiduciary duties to his empl oyer, employers do not generally owe fiduciary duties to employees under Colorado law . See Jet Courier Service, Inc. v. Mulei , 771 P.2d 486 (Colo. 1989) (employee owes employerduty of loyalty); Equitex, Inc. v. Ungar , 60 P.3d 746, 752 (Colo. Ct. App. 2002) (“fiduciary duties are not mutual”); Bithell , 762 F.2d at 714 (corporation does not owe independent contractor fiduciary duties); Vitale v. Steinberg , 764 N.Y.S.2d 236, 237 (N.Y. App. Div. 2003) (“An employer-employ ee relationship providing for the division of profits will not give rise to afiduciary obligation on the part of the employer absent an agreement to also share loss es.”). We can find, and Mr. Combs cites, no rationale for finding that Ms. Benn ett owes him fiduciary duties in his capacity as an employee of AIS. -8- Mr. Combs argues that this general prohibition agai nst individual standing does not apply because Ms. Bennett “cause[d] him injury as a stockholder, unique to himself and not suffered by the other stockholde rs.” Nicholson , 800 P.2d at 1357. If he can satisfy this exception to the gen eral rule, then Mr. Combs may pursue his fiduciary duty claims in his individual capacity. Id .; see also In re Stat-Tech Int’l Corp ., 47 F.3d 1054, 1059-60 (10th Cir. 1995) (applying Colorado corporate law). Mr. Combs offers four reasons why his fiduciary duty claims fall within the Nicholson exception: (1) Ms. Bennett’s misuse of funds depri ved AIS of money to pay him a higher salary; (2) he was the only shareh older to perform an audit; (3) Ms. Bennett’s untimely disclosure of the pending sa le of AIS inhibited his ability to negotiate a lucrative salary from PriceWaterhous e Coopers; and (4) Ms.-9-

Bennett’s promise of continued employment with Pric eWaterhouse Coopers affected him disproportionately. As the District Court noted, Mr. Combs’ first, thir d, and fourth claims of “uniqueness” are injuries in his status as an emplo yee, not a stockholder. As such, the District Court held that they failed to e stablish a unique injury to Mr. Combs in his status as a shareholder. Citing many non-Colorado cases, Mr. Combs argues on appeal that this distinction betwee n the status as a shareholder and status as an employee is not meaningful in the close corporation context because “[t]he denial of employment to the minority [shar eholder] at the hands of the majority is especially pernicious in some instances. A guaranty of employment with the corporation may have been one o f the basic reasons why a minority owner invested capital in the firm.” Wilkes v. Springside Nursing Home,
Inc ., 353 N.E.2d 657, 662 (Mass. 1976) (internal quotations omitted). While some states have adopted the approach advocat ed by Mr. Combs and permitted suits by employee/shareholders against th eir employer-close corporations, we find that Colorado has not. Color ado has refused to treat plaintiffs in a hybrid capacity (i.e., shareholder/ creditor or shareholder/independent contractor). Rather, the C olorado courts carefully distinguish the capacities in which a plaintiff bri ngs a claim. For instance, the Colorado Court of Appeals in Nicholson carefully distinguished between the3 Even in Colt , where the Court of Appeals stated that other juri sdictions

consider the thwarting of plaintiff’s reasonable expectation in employment oppressive when it arises from a minority interest in a close corporation, the case was brought as a derivative action—not in an indivi dual capacity. 78 P.3d at 1117, 1119-20.

4 Although the corporation at issue inBithellwas a Utah corporation, the Court of Appeals relied exclusively on Colorado cas e law in this analysis. Bithell , 762 P.2d at 714. Thus, we find Bithell , at least in this section, to be an application of Colorado law. -10- plaintiff’s capacity as creditor of the corporation and his capacity as stockholder in determining his standing to sue as an individual

. 3 800 P.2d at 1356-57. The court did not allow plaintiff to bring traditionall y derivative claims in his individual capacity based upon a hybrid status of s hareholder/creditor. Id. The Colorado Court of Appeals took a similar course in Bithell v. Western Care Corp ., 762 P.2d 708, 714 (Colo. Ct. App. 1988). There the court carefully distinguished plaintiff’s different statuses in relation to the c orporation and rejected a minority stockholder’s, who was also an independent contract or, claim that he had standing to bring a breach of fiduciary duty claim in his hy brid capacity as a stockholder/independent contractor. Id

. 4 In other words, when a shareholder does not possess the right to bring a suit in his indivi dual capacity as a shareholder against the corporation, as is the case here, he do es not gain that right merely because he also serves the corporation in another c apacity. In short, Mr. Combs does not suffer a unique injury as a shareholder, thus granting him individual standing, based upon his hybrid status as a stockho lder/employee. See River-11-

Mgmt. Corp. , 829 P.2d at 403 (distinguishing between suing in an individual capacity and a derivative capacity for breach of fi duciary duty). As for the second claim, conducting an audit is simply not an “ injury [to Mr. Combs] as a stockholder,” Nicholson , 800 P.2d at 1357 (emphasis added), rather it is a right that is available to all shareholders, see Colo. Rev. Stat. Ann. § 7-116-102(2)-(3) (West 2003) (shareholder’s right t o review accounting records). Thus, he cannot satisfy the Nicholson test for individual standing. C. Adoption of Donahue in Colorado Next, Mr. Combs urges us to predict that the Colora do Supreme Court will adopt the holding of Donahue v. Rodd Electrotype Co. of New England, Inc ., 328 N.E.2d 505 (Mass. 1975). The Donahue decision brought about two innovations in the law of close corporations relevant to this c ase. First, the court held that shareholders in a close corporation owe each other duties as if they are partners: Because of the fundamental resemblance of the close corporation to the partnership, the trust and confidence which are essential to this scale and manner of enterprise, and the inherent da nger to minority interests in the close corporation, we hold that st ockholders in the close corporation owe one another substantially the same fiduciary duty in the operation of the enterprise that partne rs owe to one another. Id . at 515 (notes omitted). The Colorado courts have adopted this rule. See Van Schaack Holdings v. Van Schaack, 867 P.2d 892, 897 (Colo. 1994) (en banc) (“[I]t i s widely recognized that the fiduciary duty imposed on corporate direct ors and officers dealing with5 See, e.g., Norman v. Nash Johnson & Sons’ Farms, Inc ., 537 S.E.2d 248,

259 (N.C. Ct. App. 2000); Brown v. Brown , 731 A.2d 1212, 1217 (N.J. Super. Ct. App. Div. 1999); Richards v. Bryan , 879 P.2d 638, 648 (Kan. Ct. App. 1994); Schumacher v. Schumacher , 469 N.W.2d 793, 798-799 (N.D. 1991); W&W Equipment Co. v. Mink, 568 N.E.2d 564, 571 (Ind. Ct. App. 1991); Crosby v. Beam , 548 N.E.2d 217, 221 (Ohio 1989); Thomas v. Dickson , 301 S.E.2d 49, 51 (Ga. 1983); see also American Law Institute, Principles of Corporate Go vernance: Analysis and Recommendations § 7.01(d) (1994); Warden v. McLelland, 288 F.3d 105, 112-113 (3d Cir. 2002) (predicting that the Pe nnsylvania Supreme Court would follow ALI approach).

6 See, e.g., Brancaleone v. Mesagna , 736 N.Y.S.2d 685, 687 (N.Y. App. Div. 2002); Small v. Sussman , 713 N.E.2d 1216, 1219-1220 (Ill. App. Ct. 1999), (continued...) -12- minority shareholders is enhanced in the context of closed corporations.”); Pueblo Bancorporation v. Lindoe, Inc. , 37 P.3d 492, 499 (Colo. Ct. App. 2001), aff’d 63 P.3d 353 (Colo. 2003) (“In a closely held corporati on, the relationship between directors and shareholders is treated like a relati onship between partners.”); Colt , 78 P.3d at 1119 (same). The existence of heightene d fiduciary duties, however, does not on its own create individual standing. The Donahue court’s second innovation granted individual stand ing to shareholders in close corporations. Donahue , 328 N.E.2d at 508 n.4 (“We treat that bill of complaint . . . as presenting a propercause of suit in the personal right of the plaintiff.”). Many jurisdictions have adopted the Donahue court’s approach to standing either in whole or with qualifications. 5 Nonetheless, many others have rejected the Donahue approach to standing, often adopting a rule simila r to that espoused by the Colorado Court of Appeals in Nicholson

. 6 The Colorado6 (...continued)

appeal denied

723 N.E.2d 1169 (Ill. 1999); Nelson v. Anderson, 84 Cal. Rptr. 2d 753, 763 (Cal. Ct. App. 1999); Wessin v. Archives Corp. , 592 N.W.2d 460, 467 (Minn. 1999); Hames v. Cravens , 966 S.W.2d 244, 246-47 (Ark. 1998); Landstrom v. Shaver , 561 N.W.2d 1, 13-14 (S.D. 1997); Wingate v. Hajdik, 795 S.W.2d 717, 719 (Tex. 1990); see also Brock v. Baskin-Robbins USA Co. , 113 F. Supp. 2d 1078, 1092 (E.D. Tex. 2000) (noting that A labama, Texas, and Louisiana do not permit shareholders to sue individ ually for injuries to a corporation). -13- Supreme Court has yet to explicitly reject or accept the Donahue approach to standing. Nevertheless, because Colorado courts have recently adopted the Donahue approach to the scope of fiduciary duties between s hareholders in a close partnership— see Van Schaack, 867 P.2d at 897; Pueblo Bancorporation , 37 P.3d at 498; Colt , 78 P.3d at 1119—the standing issue is ripe for de termination by the Colorado Supreme Court. At oral argument, we askedMr. Combs’ counsel if he would like the question certified to the Colorado S upreme Court. He stated he would prefer that the question not be certified. M s. Bennett’s counsel also did not wish to certify the question. Instead, Mr. Combs’ counsel urges us to predict that the Colorado Supreme Court would adopt the Donahue standing rule. As we noted above, the general trend in Colorado has been that corporate claims mu st be pursued in a derivative suit, even in close corporations. River Mgmt. Corp. , 829 P.2d at 404; see also In re Stat-Tech Int’l Corp ., 47 F.3d at 1059-60 (finding, under Colorado law, that-14-

corporate claims generally must be pursued derivati vely); Nicholson , 800 P.2d at 1357 (holding that the only exception to the need f or derivative action arises where the defendant “cause[s plaintiff an] injury as a stockholder, unique to himself and not suffered by the other stockholders. ”). Although these cases were decided by the Court of Appeals, we have no “persuasive data that the highest court of the state would decide otherwise.” West v. Am. Tel. & Tel. Co. , 311 U.S. 223, 237 (1940). Given the split of authority on this issue among the states, see
supra notes 4 and 5, and the special importance of the c ontrol of corporate governance in state law, we refuse to predict that the Colorado Supreme Court will part ways with the Colorado Court of Appeals, thereby creating a sea change in Colorado corporate law, on the issue of close co rporation shareholders’ standing to sue. Therefore, we find that Mr. Combs lacks individual standing to sue Ms. Bennett for breach of fiduciary duty.
II. MOTION TO AMEND Two issues confront us on the motion to amend appea l. First, Ms. Bennett contends that mootness and lack of appellate jurisd iction mandate that we dismiss Mr. Combs’ motion to amend appeal. Second, Mr. Com bs urges that the District Court abused its discretion by denying his motion. We start with Ms. Bennett’s contentions. A. Motion to Dismiss-15-

A motion to dismiss that is originally filed in thi s Court is proper when the case is moot or when we lack jurisdiction. See 10th Cir. R. 27.2(A)(1). Ms. Bennett asserts the presence of both circumstances. We disagree. Ms. Bennett first contends that, because the Distri ct Court determined that the motion to amend was moot, we must also dismiss the appeal of that determination for mootness. See Iron Arrow Honor Soc’y v. Heckler , 464 U.S. 67, 70 (1983) (“Federal courts lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cas es or controversies.”). Nevertheless, we have jurisdiction to determine ourown jurisdiction. Gschwind v. Cessna Aircraft Co. , 232 F.3d 1342, 1346 (10th Cir. 2000). As such, the District Court’s conclusion that Mr. Combs’ Fed. R. Civ. P. 15(a) motion was moot when filed below is not grounds for summary di smissal in this Court, because we have the requisite jurisdictional font t o determine for ourselves whether the motion below was, in fact, moot. Thus, Ms. Bennett’s mootness motion presents the same question as an inquiry int o the merits of the appeal itself (i.e., did the District Court properly dismiss the motion to amend as moot). We discuss that issue below. Second, Ms. Bennett urges that we lack appellate ju risdiction because the order denying leave to amend is not a final decision. See 28 U.S.C. § 1291 (generally limiting the jurisdiction of the courts of appeal to final decisions from-16-

the district courts). We agree with Ms. Bennett th at an order denying leave to amend is not, in most cases, a final decision, as afinal decision is one that “ends the litigation on the merits and leaves nothing forthe court to do but execute the judgment.” Catlin v. United States , 324 U.S. 229, 233 (1945). It does not follow, however, that courts of appeals lack jurisdiction t o review a denial of leave to amend that is filed after the district court has is sued a final decision and is appealed in conjunction with the final decision. See, e.g., Copier v. Smith & Wesson Corp ., 138 F.3d 833, 834 (10th Cir. 1998) (“Appellant . . . appeals from the district court’s final order denying her motionto amend and confirming dismissal of her complaint.”) (note omitted). Thus , if Mr. Combs had presented his motion to amend argument in the same appeal as his summary judgment argument, we would undoubtedly have jurisdiction. That is not exactly the case at hand. Mr. Combs fi led his summary judgment appeal first; he then separately appealed the denial of his motion to amend. Although filing two separate appeals may af fect our jurisdiction in a different case; we do not find on the facts before us that Mr. Combs’ filing of two separate appeals differs meaningfully from a single appeal of a final decision that includes a review of a motion to amend as an additi onal issue. Therefore, we hold that we have jurisdiction to hear Mr. Combs’ m otion to amend appeal. B. Denial of Leave to Amend-17-

After entering final judgment against Mr. Combs, th e District Court dismissed Mr. Combs’ motion for leave to amend his complaint as moot. Mr. Combs contends this amounts to reversible error. W e disagree.
1. Standard of Review The parties contest the applicable standard of revi ew. In his opening brief, Mr. Combs pushes for de novo review by citing Foster v. Allied Signal, Inc ., 293 F.3d 1187, 1192 (10th Cir. 2002) and Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir. 2000). Fosterand Cooperman , however, hold that the de novo standard applies to our review of summary judgment orders, n ot denials of motions to amend. Ms. Bennett argues for abuse of discretion review, citing Zenith Radio Corp. v. Hazeltine Research, Inc ., 401 U.S. 321, 330-31 (1971) (“It is settled that the grant of leave to amend the pleadings pursuant to Rule 15(a) is within the discretion of the trial court”) and Pallottino v. City of Rio Rancho , 31 F.3d 1023, 1027 (10th Cir. 1994) (same). In reply, Mr. Combs reasserts that we apply de novo review, this time relying upon Watson ex. rel. Watson v. Beckel , 242 F.3d 1237, 1239-40 (10th Cir. 2001) (“This court reviews de novo a district court’s refusal to grant leave to amend a complaint based o n the court’s conclusion that the amendment would be futile.”). Although Mr. Com bs relies exclusively on
Watson in his renewed standard of review argument, he fail s to argue that the District Court based its decision to deny leave to amend on futility. Therefore,-18-

we review for abuse of discretion. Pallottino , 31 F.3d at 1027.
2. Merits The District Court denied Mr. Combs’ motion to grant leave to amend, stating only that it was moot. Mr. Combs contends that the District Court abused its discretion by failing to offer reasons for its denial because the rationale for the denial is not apparent from the record. See id. He misapplies this rule. After a district court enters a final judgment, as occurred here, it may not entertain motions for leave to amend unless the cou rt first sets aside or vacates the judgment pursuant to Fed. R. Civ. P. 59(e) or 6 0(b). Seymour v. Thornton , 79 F.3d 980, 987 (10th Cir. 1996). Mr. Combs filed ne ither a Rule 59(e) nor a Rule 60(b) motion. This failure to file the necessary p rerequisite motion mooted his motion to amend. As such, the District Court provi ded all the explanation necessary to justify its ruling. Although he did not style his Rule 15(a) motion to amend as a motion to set aside or vacate, Mr. Combs counters that the Distri ct Court had “the discretionary power to treat [his] Rule 15(a) motion seeking to amend a complaint as including a Rule 59(e) motion to amend judgment or a Rule 60( b) motion for relief from judgment.” 3 Moore’s Federal Practice § 15.12[2] & n.19 (3d ed. 2004) (listing cases). Mr. Combs, however, offers no reason for u s to conclude that the District Court abused its discretion by failing to morph his Rule 15(a) motion into a Rule-19-

59(e) or 60(b). Indeed, our review of relevant cas e law and the record assures us that the District Court made the proper ruling.
In Pallottino , we explained that granting leave to amend after e ntry of summary judgment is disfavored: A busy district court need not allow itself to be i mposed upon by the presentation of theories seriatim. Liberality in a mendment is important to assure a party a fair opportunity to p resent his claims and defenses, but equal attention should be given to th e proposition that there must be an end finally to a particular litigation. . . . Much of the value of summary judgment procedure in the cases fo r which it is appropriate . . . would be dissipated if a party we re free to rely on one theory in an attempt to defeat a motion for summaryjudgment and then, should that theory prove unsound, come back a long thereafter and fight on the basis of some other theory. 31 F. 3d at 1027 (internal citations and quotations omitted). This wariness is heightened when the losing party s eeks the amendment many months after his initial filing, the amendment is n ot based on new evidence, and the amendment is merely the presentation of an alte rnate legal theory that was readily available prior to the entry of summary jud gment. Id

. Here, Mr. Combs waited over fifteen months from the filing of his first amended complaint before seeking leave to amend; an d he offers no new evidence as grounds for the amendment. Rather, he lost on the individual capacity theory and sought to amend his complaint to use a derivati ve action as an alternative. Given this record, we find that the District Court did not abuse its discretion in failing sua sponte to treat Mr. Combs’ Rule 15(a) m otion as a Rule 59(e) or 60(b)-20-

motion. Therefore, the motion for leave to amend w as properly denied as moot.
IV. CONCLUSION We hold that Mr. Combs lacks individual standing to bring suit for breach of fiduciary duty and AFFIRM the District Court’s g rant of summary judgment in favor of Ms. Bennett. We also have jurisdiction to hear Mr. Combs’ appeal of the District Court’s denial for leave to amend and AFFI RM the court’s order.